Contraception mandate and religion: High court seen to tread the middle ground

As usual, Jesuit priest Thomas Reese, a senior analyst for the National Catholic Reporter, brings context and clarity to the debate over the contraception mandate under the Affordable Care Act.

“Hobby Lobby got what it wanted. The owners will no longer have to pay for coverage of the two contraceptives (IUDs and Plan B) that they consider abortifacients…. but the decision’s discussion of the accommodation granted to religious corporations will make it very difficult for the bishops to win their case against it,” he wrote in his column.

Churches and religious groups, including Catholic parishes and dioceses, were already exempt from the mandate that employers pay for their employees’ contraception coverage.

Religious corporations were given “an accommodations” so the nonprofit organizations would not have to pay for contraceptives in their insurance plans — but their insurance companies would provide birth control coverage to the employees at no cost to employers because it would be cheaper than paying for live births. The employer simply would have to fill out EBSA Form 700 and send it to the insurance company.

“In the Hobby Lobby decision, the court argued that the accommodation should also be offered to for-profit corporations like Hobby Lobby. The accommodation was seen by the court as an excellent way of respecting the religious views of the company while still getting contraceptives to its employees,” Reese wrote. “In his oral presentation to the court, the Hobby Lobby lawyer said such an accommodation would be acceptable to his client.”

Yet, some religious employers, including Catholic bishops, are suing over the accommodation because, they argue, filling out the form for insurance companies would be “immoral cooperation in the evil.”

The Supreme Court recently issued an order in the Wheaton College case challenging the accommodation that gave injunctive relief to Wheaton — the religious school would not have to file Form 700 and the federal government could not penalize it for not doing so.

Yet Reese goes on to argue that this victory for religious nonprofits is a partial one at best.

“The language of the Wheaton order is very precise,” Reese wrote.

Reese said the order signals what the court thinks is the proper resolution of the case down the line. The order says that if the religious nonprofit informs Health and Human Services that it has religious objections to providing contraceptive services, it can, with impunity, skip sending Form 700 to its insurance company.

But the court also says: “Nothing in this interim order affects the ability of” Wheaton College’s “employees and students to obtain, without cost, the full range of FDA approved contraceptives.”

“The court is not striking down the accommodation, it is striking down Form 700,” Reese wrote.

One way or another, by the nonprofit or the federal government, the insurance company will be informed that the nonprofit objects to paying for contraception and the insurer will still be required to cover the nonprofit employees’ contraception at no cost to them.

“The bottom line is that the Supreme Court likes the accommodation but thinks Form 700 is not necessary,” Reese wrote. “My prediction: the court will give the bishops a win in their fight against Form 700, but it will not strike down the accommodation nor stop contraceptives from reaching employees of religious nonprofits.

“Whether eliminating Form 700 is worth the millions of dollars spent on this fight is another question,” he said.

Reese also points out that 26 states have their own contraceptive mandates, which are not affected by the decision.

Reese ends by wondering whether the Catholic bishops and other religious groups will try another tact to kill “the accommodation” they find so unaccommodating.

Electa Draper is the health writer for The Denver Post and has covered every news beat in a 22-year journalism career at three newspapers. She has a bachelor's degree in biology and a master's in journalism.